Case 1:09-mj-03001-CBS Document 10 Filed 09/24/2009 USDC Colorado Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 09-mj-03001-CBS UNITED STATES OF AMERICA, Plaintiff, v . 1. NAJIBULLAH ZAZI, Defendant. GOVERNMENT’S PROFFER AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DETENTION The United States of America, by and through David Gaouette, United States Attorney for the District of Colorado, Tim R. Neff and Gregory Holloway, Assistant United States Attorneys, and William M. Narus, Trial Attorney, Counterterrorism Section, United States Department of Justice, hereby provides a proffer and memorandum of law in support of its Motion for Detention. 1. On September 21, 2009, the Government moved for Detention of the Defendant. At the time, the Defendant was charged in a one-count complaint with Making a False Statement in a Matter Involving International and Domestic Terrorism, in violation of 18 U.S.C. § 1001. 2. On September 23, 2009, a grand jury in the Eastern District of New York returned an indictment charging the Case 1:09-mj-03001-CBS Document 10 Filed 09/24/2009 USDC Colorado Page 2 of 5 Defendant with Conspiracy to Use Weapons of Mass Destruction, in violation of 18 U.S.C. § 2332a(a)(2), an offense punishable for up to life imprisonment. 3. Based on the new charges pending against the Defendant, the Government renews its Motion to Detain the Defendant. Further, the Government asserts that pursuant to 18 U.S.C. § 3142(e)(3)(C), there now exists a presumption that there are no conditions or combination of conditions that will reasonably assure both the appearance of the Defendant as required and the safety of the community as the Defendant is presently charged with a federal crime of terrorism as defined by 18 U.S.C. § 2332b(g)(5)(B) for which there is probable cause to believe that he committed such offense. 4. In support of the present Motion, the Government attaches: A. Criminal Indictment Docket No. 09-cr-663(RJD) from the Eastern District of New York, United States v. Najibullah Zazi and the accompanying warrant for the arrest of the Defendant (Government Exhibit No. 1); and B. Memorandum of Law in Support of the Government’s Motion for a Permanent Order of Detention prepared by the United States Attorney’s Office for the Eastern District of New York (Government Exhibit No. 2). 5. The Tenth Circuit has approved of a parties’ right to proceed by way of proffer at a detention hearing. See United 2 Case 1:09-mj-03001-CBS Document 10 Filed 09/24/2009 USDC Colorado Page 3 of 5 States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991)(finding that Government met its burden of persuasion supporting order of detention based on its offers of proof presented at the detention hearing); United States v. Schmidt, 297 Fed.Appx, 792, 793(10th Cir. 2008)(unpublished)(upholding order of detention based on evidence presented by proffer); United States v. Austin, 947 F.2d 954, *2, n. 2 (10th Cir. 1991)(unpublished)(stating that the “facts [at the detention hearing] were established by proffer of evidence, a proper procedure in detention proceedings”). Moreover, 18 U.S.C. § 3142(f)(2) contemplates that information may be presented by “proffer or otherwise.” Id. Respectfully submitted this 24th day of September, 2009. DAVID M. GAOUETTE United States Attorney By:s/Tim Neff TIM R. NEFF Assistant United States Attorney U.S. Attorney’s Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0402 e-mail: [email protected] Attorney for the Government 3 Case 1:09-mj-03001-CBS Document 10 Filed 09/24/2009 USDC Colorado Page 4 of 5 By:s/Gregory A. Holloway GREGORY A. HOLLOWAY Assistant United States Attorney U.S. Attorney’s Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 e-mail: [email protected] Attorney for the Government By: s/William M. Narus WILLIAM M. NARUS Trial Attorney Counterterrorism Section U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 Telephone: (202) 307-0789 Fax: (202) 514-8714 e-mail: [email protected] Attorney for the Government 4 Case 1:09-mj-03001-CBS Document 10 Filed 09/24/2009 USDC Colorado Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of September, 2009, I electronically filed the foregoing GOVERNMENT’S PROFFER AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DETENTION using the CM/ECF system and a copy was sent via e-mail to: Arthur A. Folsom, III e-mail: [email protected] and J. Michael Dowling, Esq. e-mail: [email protected] s/Maggie E. Grenvik Maggie E. Grenvik Legal Assistant U.S. Attorney’s Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 e-mail: [email protected] 5 Case 1:09-mj-03001-CBS Document 10-2 Filed 09/24/2009 USDC Colorado Page 1 of 4 Case 1:09-mj-03001-CBS Document 10-2 Filed 09/24/2009 USDC Colorado Page 2 of 4 Case 1:09-mj-03001-CBS Document 10-2 Filed 09/24/2009 USDC Colorado Page 3 of 4 Case 1:09-mj-03001-CBS Document 10-2 Filed 09/24/2009 USDC Colorado Page 4 of 4 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 1 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 2 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 3 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 4 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 5 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 6 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 7 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 8 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 9 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 10 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 11 of 12 Case 1:09-mj-03001-CBS Document 10-3 Filed 09/24/2009 USDC Colorado Page 12 of 12.